IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100607

Docket: M114066

Registry:
New Westminster

Between:

Joel Clifford Raun

Plaintiff

And

Jasvinder Singh
Suran

and Joginder Singh
Suran

Defendants

Before:
The Honourable Mr. Justice Curtis

Reasons for Judgment

[1]            
The plaintiff Joel Raun was injured in a violent rear-end motor vehicle
collision July 12, 2005.  The defendants have admitted liability for the
collision.  The issue to be decided is the appropriate amount of compensation
to which Mr. Raun is entitled as a result of injuries caused by the collision. 
The plaintiff seeks $75,000 to $80,000 for general damages, $68,000 to $98,000
for past loss of income, $75,000 to $100,000 for reduced earning capacity and $1,533.59
in special damages.  The defendants’ submission is that a proper award would be
$18,000 for non-pecuniary damages, nothing for past loss of income or reduced
earning capacity and $693.59 for general damages.  The wide discrepancy in
suggested damages arise from conflicting assessments of the nature, extent and
duration of Mr. Raun’s physical injuries and the cause of his lack of earnings
since the collision.

[2]            
On July 12, 2005, Joel Raun was 17 years old, and attending summer
school between his grade 11 and grade 12 years.  He was a talented athlete with
a particular passion for football, where he distinguished himself as a wide
receiver and in returning kickoffs and punts.  Mr. Raun was not academically
inclined and judging by the number of school sports he played much of his time
involved athletics. In school he played basketball, volleyball, rugby,
lacrosse, badminton, soccer and participated in track and field.  Outside of
school, in addition to playing for the North Surrey Tigers football team and twice
participating in the B.C. Provincials tournament, he played he played golf,
tennis and hockey.  He lived with his grandmother and his uncle Dallas Lang as
his mother was severely injured in a car accident when he was two and unable to
care for him.

[3]            
Mr. Raun was driving his own 1998 Acura car east on 104^th
Street in Surrey and had stopped to make a left-hand turn to go south on Old
Yale Road when a Ford Expedition driven by Jasvinder Suran collided with the
back of the Acura and drove it through the intersection.  Mr. Raun had his foot
on the brake when he was struck without warning from behind.  His vehicle was
undrivable and written off.

[4]            
Immediately after the collision, Mr. Raun felt in shock.  He walked to a
nearby house.  When he complained of neck and back pain and pain in his knee
where it hit the dashboard, his uncle took him to a hospital emergency ward
where he was examined, x-rayed, and released after the x-rays showed no
evidence of fractures.

[5]            
Mr. Raun returned to his summer school courses having missed only the
day of the accident.  His injury to his left knee and mid back cleared up in a
month or two following his injury, but pain in his right shoulder, neck and low
back continued to bother him.

[6]            
Mr. Raun consulted his family doctor, Dr. Allerston, whose practice was
taken over by Dr. Parikh after Dr. Allerston retired.

[7]            
Dr. Allerston sent Mr. Raun to Dr. Chu, a specialist in physical
medicine and rehabilitation.  Dr. Chu has given reports dated December 18,
2006, October 16, 2007 and January 27, 2010.

[8]            
Mr. Raun returned to his high school in the fall of 2005 and attempted
to resume his sporting activities but found he could not participate as he once
had because of pain in his right shoulder, neck and lower back.  In his grade
12 year, the only school sport he played was volleyball.  He tried out for
football in the spring of 2006 but throwing and tackling hurt his shoulder too
much and he did not pursue it.  He did not graduate with his class in June
2006, but took summer school and graduated from Johnston High School in
December 2006.

[9]            
To date, Mr. Raun has had three courses of physiotherapy, 17 treatments
between September 19, 2005 and November 2005, 10 treatments from October 18 to
November 17, 2006 and 23 treatments from November 30, 2009 to January 30, 2010.

[10]        
After Mr. Raun’s graduation from grade 12 in December 2006, he spent
much of his time caring for his grandmother who was in great pain from cancer
and died February 16, 2007.

[11]        
Mr. Raun has worked for years helping care for his aunt’s children for
which he currently receives $340 per month.  Since his mother died from
complications from her injury he has received $1,500 per month from her
insurance which he will get until he is 26.  He also received money from his
grandmother’s estate which he used for a down-payment on a condominium he
occupies with a roommate.

[12]        
Joel Raun was not employed at the time of the trial and is hoping to
take a business course at Douglas College in September, although he has not
applied for any courses yet.  Mr. Raun testified that his ambition before his
injury was to become a heavy duty mechanic but he feels his physical
limitations caused by his continuing back and neck pain have closed off that
possibility.

[13]        
In the fall of 2007, about nine months after he graduated, Mr. Raun took
a job as an installer for Rocky Mountain Glass.  He testified he worked there
for a month and a half but had to quit because of the back and neck pain he had
waking up each morning.  In October 2007, at the suggestion of his uncle Dallas
Lang, who is a locomotive engineer, Mr. Raun began a training course to be a
conductor with CN Rail.  The course took six weeks and involved a lot of
reading and classroom work along with instruction in lining switches, replacing
broken knuckles and getting on and off moving trains.  Mr. Raun took a medical
before the course and told the doctor for CN he had no physical limitations and
was fit to work.  He testified he found it hard to do the switching and carrying
the 60 to 70 pound knuckles.  He got a mark of 83 percent in the course.  A
mark of 90 percent was required to pass and he was not hired.  He testified he
was told he was not hired because he failed to get a passing mark in his
examination.

[14]        
In 2008, Joel Raun took employment as a security guard initially
part-time and then full-time earning $12.50 per hour.  He was employed at a
hotel and liquor store site.  He testified he had to quit the job because of
his physical limitations caused by the accident − he found sitting
watching the surveillance camera uncomfortable and confronting and restraining
people too physically demanding.  His last employment other than for his aunt
was a stocker with Costco for $10 per hour for six weeks in the fall of 2009
where he earned $898.68.

[15]        
Mr. Raun continues to participate in sports but feels he is markedly
limited because of his shoulder, low back and neck pain.  He plays hockey
regularly in a pick-up game with the Teamsters through his railway connection. 
He plays golf, tennis and basketball occasionally, but much less than before. 
He exercises and stretches regularly and swims, all as recommended by his
doctors to improve his condition. In the summer of 2009, he was swimming and
exercising regularly at the pool at the home of his friend, Eric Middlebrook. 
Evidence of the success of that program was produced by counsel for the
defendants who obtained a video from Mr. Raun’s Facebook site.  The video,
taken by his friend Eric in the summer of 2009 shows Mr. Raun standing in the
swimming pool then squatting down until the water about covered his shoulders,
bouncing about three times then jumping explosively out of the water to land on
his feet on the pool deck.  Mr. Raun testified he saw this done on the internet
and decided to try it but was not able to succeed until he trained for two and
a half months.  His friend Eric was unable to succeed at the jump which
obviously requires considerable fitness and athleticism.

[16]        
Joel Raun has testified that he is significantly restricted by his lower
back, shoulder and neck pain.  He says he cannot take part in vigorous
competitive sports like hockey and football and that as many of his friends are
athletes he feels left out.  He also feels he cannot do work which requires
prolonged or heavy physical effort and has testified that although his shoulder
pain has improved over the last six to 12 months, his neck pain and back pain
have not, and he is awakened three to four times a  night by neck and back
pain.

[17]        
The position of the defence is that there is no evidence of significant
injury to Mr. Raun; he is not limited in what he can do as a result of injuries
from the collision and the pool jump video gives a more accurate assessment of
his physical functions.

[18]        
Mr. Raun’s evidence about his limitations is supported by the
observations of his uncle Dallas Lang and his best friend Eric Middlebrook.  It
is also supported by the reports and evidence of Dr. Chu, the physical rehabilitation
specialist and his family doctor, Dr. Parikh who appeared to have a good
understanding of Mr. Raun and his condition.  It appears that the fact is that
while Mr. Raun can do virtually anything within normal range once or twice, has
normal muscle development (or better) and normal range of motion, his ability
to continue or sustain some activities is limited by pain in his shoulder, neck
and back.

[19]        
It is Dr. Chu’s opinion that Mr. Raun continues to suffer from “a
mixture of soft tissue and mechanical pain” of a chronic nature.

[20]        
In his report of January 27, 2010, Dr. Chu writes:

My diagnostic impression is
that he has ongoing mechanical pain in his neck and low back as well as right
shoulder. Mechanical spinal pain refers to pain originating from specific mechanical
structures that can be pain generators. There are various structures in the
spine that can produce pain such as the facet joint, disc, ligaments, and bone.
In Mr. Raun’s case it seems to be mostly facet joint pain in the lower
neck and lower back.

Often times though, when there
is deeper mechanical pain the muscles around the area tend to tense up to guard
it and after a while that can lead to a chronic myofascial pain or regional
muscle pain.

DISCUSSION:

In a typical whiplash-type
injury one gets acceleration and deceleration forces applied to the spine which
can often times lead to small tears within the supportive muscles and ligaments
around the spine which then leads to the acute post whiplash-associated pain.
When that occurs the body tries to repair itself and once the repair is
finished the pain resolves. However, if certain mechanical structures are
injured such as the facet joint then that can often times lead to chronic
mechanical pain such as what Mr. Raun is experiencing.

The motor vehicle accident
seems to have been the direct cause of his ongoing chronic neck and low back
pain and right shoulder pain. That is assuming that he had no previous neck or
back problems before the car accident or shoulder problems and that these
problems started right away after the car accident.

RECOMMENDATIONS:

There are no further
recommendations for investigations. Diagnostic imaging tests such as MRI or CT
scan are not useful for diagnosing mechanical spinal pain. We also know from
the MRI that there is no major structural damage to the right shoulder, just a
small degree of bursitis irritating the area.

Passive treatments such as
manual treatments and electrical stim are not helpful for this kind of
mechanical and soft tissue pain. He should be pursuing an active exercise
program, specifically for the right shoulder and for the back. I would not
recommend any ongoing indefinite physiotherapy or other therapy. He has not
gotten any improvement even despite all these treatments.

IMPAIRMENT &
DISABILITY:

Impairment is a medical
diagnosis. It is based upon the medical model of disease and illness. It is
defined as the alteration or loss in function anatomically, physiologically, or
psychologically. In his case Mr. Raun has impairments including the right
rotator cuff impingement bursitis plus mechanical lower neck pain and
mechanical low back pain with some secondary regional muscle pain.

Disability on the other hand
is a much more subjective concept than impairment. It is defined as the gap
between what one can do and what one is expected to do to meet vocational and
avocational goals and duties. When one looks at the amount of disability a
person has one has to look at how reasonable it is in relations to the
underlying impairment. A certain degree of impairment should translate into a
certain degree of disability given a person’s social background and work. For
example a heavy labourer with mechanical low back pain is probably more
disabled than an office worker with mechanical low back pain at least for that
job that he is qualified for.

When one sees that the amount
of disability outweighs the amount of impairment for a given person then one
has to look at various psychosocial factors that can contribute to disability.
These factors include a person’s perception of the sick role, job satisfaction,
catastrophization,  interpersonal stressors, monetary stressors, anxiety,
stressors from the whole medical/legal process and others.

At this point Mr. Raun is
working very part-time doing light work or at least nothing heavy with looking
after his cousins. He can certainly tolerate his previous job as a security guard
given his musculoskeletal problems. He should be able to do those tasks that he
was doing before.  It can cause pain but it is not going to cause himself any
more harm or damage with keeping physically active within reason and a security
guard is well within his capabilities medically.

However, he is pursuing
re-training or at least upgrading his education for a better career in the
future and is attending business school or a commerce program in the future.
That is up to him whether he wants to pursue that as an alternate goal for
himself.

PROGNOSIS:

The prognosis is poor for
resolution of his neck and back pain. The prognosis is fairly good that he will
be able to improve on the right shoulder bursitis. That typically gets better
after one stops repetitively irritating it with overhead work. He is not doing
any of that kind of action nowadays. He should stay away from exercises that
include overhead movement such as shoulder presses. He should work on
strengthening the rotator cuff muscles through an exercise program and that
should help.

Also
a regular exercise program can often help with mechanical back pain and with
the secondary myofascial pain. He should be able to get back into some gainful
employment in the near future if he wishes. He is not at any increased risk of
developing accelerated degenerative changes as a result of the whiplash injury.
Every person has a degree of slowly progressive degenerative changes that occur
in the spine over time. Some people have more than others and it can be
dependent in part on work activities.

[21]        
Dr. Parikh in his report of March 1, 2010 expresses a similar opinion. 
He writes at page three:

In summary. Mr Raun sustained
a right shoulder supraspinatous tendinitis and cervicolumbar strain as a result
of an MVA on July 12, 2005. The prognosis on his right shoulder is good. If he continues
to exercise and do resistance training to build up the rotator cuff muscles. He
is actively doing this in the pool and at a gym. The prognosis for his neck and
lower back is however guarded, given the four half year duration since the MVA.
I  would agree with Dr Chu that the prognosis for complete resolution of his
neck and back pain is poor. Dr Sovio has  the same findings as Dr Chu, but does
not recommend any formal therapy. Mr. Raun will need to find a job that
requires less physical activity, in order to obtain continued employment.

I
trust this information will be of use to you in the adjudication of this claim.

[22]        
Mr. Raun also had a functional capacity evaluation done February 1, 2010
by Megan Stacey, an occupational therapist.   At page eight of her report, Ms.
Stacey offers the following assessment:

Based on the findings of this
assessment, Mr. Raun does not demonstrate full capacity for bending, stooping,
static standing and reaching that would impact his ability to work in a full
range of jobs within this category. Also, while he is able to perform material
handling within the upper regions of a medium strength category, he has
limitations in his ability to perform full medium strength lifting to all
levels. He therefore, does not demonstrate the ability to meet the full
strength demands of this position. However, based on his report of his job
tasks Mr. Raun is able to perform all required tasks in his current position on
a part-time basis. It is expected that he would be able to continue in this
capacity indefinitely.

Mr. Raun indicated that he
wants to pursue a career as a heavy-duty mechanic. The NOC classifies
this job under the heading Heavy Duty Equipment Mechanics (#7312). The NOC
indicates that job titles under this heading require the ability to work in
other body positions (in addition to sitting, standing, and/or walking such as
bending, stooping, kneeling, and crouching), upper limb coordination, and heavy
strength (the ability to handle loads weighing more than 20 kilograms/44
pounds).

Based
on the findings of this assessment, Mr. Raun does not demonstrate full capacity
for bending, stooping, static standing and reaching that would impact his
ability to work in a full range of jobs within this category. Additionally,
although he demonstrated the ability to lift 27.3 kilograms (60 pounds) between
floor and knuckle level, he did not demonstrate the capacity for heavy material
handling above knuckle level. He therefore does not meet the strength
requirements for a position as a heavy-duty mechanic.

[23]        
Ms. Stacy makes clear in her report that her assessment represents an
evaluation of Mr. Raun only on the day she tested him.  The report does,
however, tend to support both Mr. Raun’s evidence and the medical assessments.

[24]        
Defence counsel had Mr. Raun assessed by Dr. Sovio, an orthopaedic
surgeon, January 14, 2010.  Dr. Sovio concludes: “It does not appear that there
is anything significant ongoing as far as the patient’s current situation is concerned.” 
He refers to Mr. Raun having “some mild discomfort in his neck”, “some
discomfort in his right shoulder” and “some discomfort with lumbar movements to
extremes”.  He also observes “the patient is able to function relatively
normally.”  I do not read Dr. Sovio’s report as contradicting the opinions
of Dr. Chu or Dr. Parikh.  Mr. Raun’s problem is mostly chronic pain and Dr.
Sovio does not say he does not have chronic pain.

General
Damages

[25]        
I find it to be proven that Mr. Raun suffered injury to his right
shoulder, left knee, neck, middle and upper back caused by the July 12, 2005
collision.  The mid back and knee injuries cleared up in a month or two but
Joel Raun has continued to suffer right shoulder, neck and lower back pain of a
mechanical and soft tissue origin which have affected him up to the date of
trial, almost five years later.  The prognosis for his right shoulder is good
and he should in time and with continued exercise essentially recover from that
injury but the prognosis for neck and low back pain is guarded.  He will
continue to have pain in those areas for some unknown time into the future. 
The shoulder, neck and back pain have significantly affected this young man.  Mr.
Raun’s success in life and much of his enjoyment of it centered around athletic
achievement.  From the summer he was 17 he has been prevented from pursuing his
athletic interests with the competitiveness, rigour and youthful abandon that
would have been open to him but for his injuries.  His neck and back in particular
will continue to cause him pain and restrict his activities into the future. 
On the other hand, Mr. Raun can perform normal functions and can still
participate in sports. I  assess a fair and reasonable amount for his pain and
suffering and loss of enjoyment of life at $75,000.

Past Loss of Income

[26]        
Mr. Raun makes no claim for past loss of income for the years 2005, 2006
and 2007 when he was in school, caring for his grandmother, dealing with her
estate and employed by CN.

[27]        
Mr. Raun’s work history from 2008 on is sporadic.  He tried various jobs
which he says he quit because they caused him pain, but there appears to be
other factors unrelated to his injuries which have contributed to his
unemployment in the regular work force.  There is no evidence of Mr. Raun
taking courses, other than the CN training, to gain employment, nor is there
documented evidence of a concerted or focused search for employment.  He has
been working for $340 per month looking after his aunt’s children and he has
been receiving $1,500 per month from his mother’s insurance.  He lives in his
own condominium with a roommate and has a car.  It appears he does not feel any
pressing necessity to be employed.

[28]        
It is not proven that he failed to get employment with CN because of his
injuries from the collision.  His evidence is that he was told he was not hired
because he did not get a passing mark.  There is no evidence from the railway
that he was not hired because of physical limitations and in fact he was
examined by a railway doctor and admitted to the course.

[29]        
I do accept that Mr. Raun did experience pain because of his employment 
duties as a glass installer and shelf stocker.  He was earning $10 to $12 per
hour in that sort of employment.  I find it reasonable to attribute loss of
that kind of employment to his accident pain for 50 percent of the time from
January 1, 2006 to June 1, 2010.  Allowing a rate of $12 per hour, 40 hours per
week and taking half of that for the period, I arrive at the sum of $29,000. 
During that time Mr. Raun earned $2,735 in 2008 from his security job, and in
2009, $109.40 from his security job and $898.60 from Costco.  In addition, he
was working for his aunt for 29 months for $340 per month which came to $9,860
($4,930 for 50 percent of time).  Using these figures, a reasonable assessment
of Mr. Raun’s loss of income attributable to his accident injuries is $29,000
less half the amount he actually earned (13,603 / 2) $22,000 (rounded to
nearest $1,000).  At such a low rate of earning, I doubt Mr. Raun would have
paid any significant amount in taxes, and I fix his award at $22,000 for his
past loss of income proven to have been caused by his accident injuries.  To
the extent he lost more than that, in my opinion,  it was caused by other
factors not related to the collision.

Reduced Earning Capacity

[30]        
Mr. Raun is a young man. He was in high school when he was injured.  It
is not possible to know what career path he would have followed but for the
accident, nor is it possible to know what his probable earnings will be from
here on.  It cannot be said therefore that Mr. Raun would have been employed in
a specific position for a certain salary, and that because of his proven
limitations caused by pain he will lose a calculable sum of money in the
future.

[31]        
The law with respect to claims for future loss in cases such as Mr. Raun
is set out in the case of Perren v. Lalari, 2010 BCCA 140 at page 12 of
the Reasons of Garson J.A. where it is stated:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229.  These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27],
and

2.         It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]      Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos.  As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.  If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.  The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok.  The latter approach
will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych.  A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment.  That was the case in both Pallos and Parypa. 
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[32]        
Mr. Raun is not a particularly academic young man − his focus to
date has been physical in nature.  In my opinion, there is a real and
substantial possibility that Mr. Raun will suffer a loss of income in the
future because he will not be able to take employment involving physical
exertion which is beyond him because of his chronic neck and back pain caused
by the accident for which the defendants are responsible.  I assess Mr. Raun’s
claim for reduced earning capacity at $75,000.

Special Damages

[33]        
I find Mr. Raun entitled to special damages in the amount of $1,533.59 as
claimed.  I accept his evidence with respect to the expenses for which he does
not have receipts.

SUMMARY

[34]        
I find Joel Raun entitled to recover compensatory damages as follows:

[35]        
Counsel may address the issue of costs should that be necessary.

“V.R. Curtis J.”